This revision application has been filed by one A.I Muhammad Mari and seeks to challenge an order of the Sub-Divisional Magistrate, Khairpur dated 5th September 1973, asking the petitioner to furnish security in the sum of Rs. 5,000 and the qualifications for the surety were also set down in the said order which qualifications should be that the surety should take care about the good conduct of the petitioner until the disposal of the main proceedings under section 110, Cr. P. C. A revision was filed against such order before the Sessions Court, Khairpur Mirs but the same was dismissed.
2. On the 3rd September 1973, the petitioner was arrested by the Station House Officer of Tando Masti Khan within the District of Khairpur Mirs. He was produced before the Sub-Divisional Magistrate on 5th September, 1973 and the learned Magistrate passed an order under sec-- petition 112, Cr. P. C. By this order the petitioner was called upon to show cause why he should not be ordered to enter into a bond in the sum of Rs. 5,000 with two sureties each in the like amount for keeping good behaviour for a period of 12 months and the sureties were further encumbered with the responsibility of controlling the activities of the petitioner. On the same day a bail application entitled as one under section 496, Cr. P. C. Was made and the learned Magistrate passed the following order: "Heard defence counsel M/s. Ghous A.I Shah and Allah Bux Abbasi. Perused the report of S. H. O.
Police Tando Masti Khan and the order under section 112, Cr. P. C.
A surety executing a bond in terms of Form II, Sched. V, as in the present case, in fact undertakes thereby to guarantee the good conduct of his principal and his fitness to stand as surety must accordingly be judged from this stand-point also and not merely from the standpoint of his pecuniary fitness.
I do not find this surety fit for the purpose of the bond and accordingly I reject him."
3. Mr. Hasan A. Sheikh, the learned Advocate for the petitioner challenges the legality of this order.
The contention is that the order of such characteristics is normally attached to an order passed under section 117(3), Cr. P. C., and, such emergent order not having been passed the Magistrate acted beyond his powers in demanding security onerous in semblance to security under section 117(3), Cr. P. C. On a perusal of the order of the Magistrate I find that he has made a reference to Form No. II in Schedule V of the Code of Criminal Procedure for the purposes of coming to the con-- clusion that the surety should be a person clothed with the qualifications as are mentioned in the impugned order. On a perusal of this form I find that it is a form providing for text of any ordinary warrants and has no bearing whatsoever on the point of qualifications of a surety.
The order of the learned Sessions Judge clearly shows that no order under section 117(3), Cr. P. C.
Has been passed. In that view of the matter the question is whether at this stage when an order under section 117(3), Cr.P.C. Has not been passed which order to say the least would require independent or collateral enquiry, conditions with regard to qualifications of surety apart from the condition of solvency are legal or valid. To that extent answer has to be in the negative and therefore the order of the Magistrate dated 5th September 1973, must be set aside and is set aside.
4. I wish to make it clear that the order of this Court will not interfere with the proceedings under section 110, Cr. P. C. Which are pending before the S. D. M. I only wish to make it clear that unless order under section 117(3), Cr. P. C. Is passed the Magistrate can only ask for a solvent surety for appearance of the petitioner but no other qualification apart from the solvency of the surety can be insisted upon. It shall however, be open to the Magistrate to proceed with the matter in accordance with law.
This application is allowed to the extent indicated above.